Norman v. State (FL) Open Carry lawsuit

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  • 777GSOTB

    Active Member
    Mar 23, 2014
    363
    I would suggest that you read the 2CA decision. It seems self explanatory to me. "The Supreme Court's “fee jurisprudence” has historically addressed the constitutionality of fees charged by governmental entities on expressive activities protected by the First Amendment—such as fees charged to hold a rally or parade." It was determined that the fees did not exceed the costs so it was acceptable. It is the same public safety issue you see in other cases. It is not limited to the 2A. SCOTUS passed on the issue because it is not inconsistent with what it has said in the past on similar issues.

    An INDIVIDUAL'S exercise of a fundamental right, is FAR removed from a group of individuals wanting to rally or parade on the public streets.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I would suggest that you read the 2CA decision. It seems self explanatory to me. "The Supreme Court's “fee jurisprudence” has historically addressed the constitutionality of fees charged by governmental entities on expressive activities protected by the First Amendment—such as fees charged to hold a rally or parade." It was determined that the fees did not exceed the costs so it was acceptable.

    The costs are arbitrarily large. Government can build bureaucracies as large as they wish, thus yielding "costs" that result in fees that are impossibly high.

    It may have been an error on the part of the plaintiffs' counsel to fail to acquire plaintiffs who were economically unable to pay the fee.

    In any case, 777GSOTB seems to be claiming that a license cannot be required as a condition upon all exercise of the right (here, the right to bear). The courts clearly have decided otherwise. I agree with him that all license imposition upon a right has some chilling effect upon the right and, thus, that it should be impermissible upon that basis. But the courts aren't in the business of actually protecting enumerated Constitutional rights, so they have decided otherwise.


    It is the same public safety issue you see in other cases. It is not limited to the 2A. SCOTUS passed on the issue because it is not inconsistent with what it has said in the past on similar issues.

    Right.

    My point regarding the 2nd Amendment is that it provides no protection against very nearly any law you care to name, because all laws which impose upon the right to keep and bear arms were passed under the "public safety" rubric.

    In essence, you (and the courts) have claimed that "public safety" always trumps the right. And the courts have further claimed that they are not in the business of second-guessing the legislature. But if that combination is so, then every law passed under the rubric of "public safety" automatically bootstraps into Constitutionality, and the end result of that is a "right" which is so tiny as to be practically nonexistent.

    When essentially any and every infringement upon a right can be "justified" on the basis of "public safety", the "right" in question ceases to be a right.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    You're mostly right,..the courts are not making it easy. Voluntarily signing an application for a license is a waiver of any rights that may be involved. One can contract(license application) away every right they have. The best option in that case would have been for someone to get arrested for not having the license.

    At which point the court will say (because they have said this) that the plaintiff doesn't have standing because the plaintiff didn't "exhaust all administrative remedies".

    This is why Dick Heller actually attempted to acquire the required license before filing suit.
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    At which point the court will say (because they have said this) that the plaintiff doesn't have standing because the plaintiff didn't "exhaust all administrative remedies".

    This is why Dick Heller actually attempted to acquire the required license before filing suit.

    In his CIVIL suit, he did the correct thing by attempting to get the license. The damage was then complete when that was denied to him, as there was now no way for Dick Heller to exercise his right to self-defense in his home with a handgun or any readily accessible firearm. Dick was ok with the license requirement so that had no bearing on his case as far as fee's are concerned. If the license fee's/tax are the bitch, one needs to NOT pay them and exercise the right over which the fee's/tax are being charged for. This of course means you won't get the license because it's a license tax/direct tax that's not been paid...In other words, the license attaches to the tax, it's a tax first and foremost and why the court ruled in Murdock v Penn 319 U.S. 105 (1943) the way they did. A similar example is the registration requirements that attach to the NFA Tax. Once arrested for that, the injury to ones rights has been established. We now have a criminal suit with an actual damaged party involving a fundamental right and according to their own ruling in Murdock v Penn 319 U.S. 105 (1943), a tax/fee can not be charged in the exercise of a right protected by the federal constitution.

    DISTRICT OF COLUMBIA v. HELLER, 554 U.S. 570, (2008)

    "Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    The costs are arbitrarily large. Government can build bureaucracies as large as they wish, thus yielding "costs" that result in fees that are impossibly high.

    It may have been an error on the part of the plaintiffs' counsel to fail to acquire plaintiffs who were economically unable to pay the fee.

    In any case, 777GSOTB seems to be claiming that a license cannot be required as a condition upon all exercise of the right (here, the right to bear). The courts clearly have decided otherwise. I agree with him that all license imposition upon a right has some chilling effect upon the right and, thus, that it should be impermissible upon that basis. But the courts aren't in the business of actually protecting enumerated Constitutional rights, so they have decided otherwise.




    Right.

    My point regarding the 2nd Amendment is that it provides no protection against very nearly any law you care to name, because all laws which impose upon the right to keep and bear arms were passed under the "public safety" rubric.

    In essence, you (and the courts) have claimed that "public safety" always trumps the right. And the courts have further claimed that they are not in the business of second-guessing the legislature. But if that combination is so, then every law passed under the rubric of "public safety" automatically bootstraps into Constitutionality, and the end result of that is a "right" which is so tiny as to be practically nonexistent.

    When essentially any and every infringement upon a right can be "justified" on the basis of "public safety", the "right" in question ceases to be a right.

    While the costs may be excessive due to bureaucracy, the plaintiffs in the case did not dispute the cost information. They gave up the right to make that point because they did not challenge it.

    This lead into the second point. Court cases are decided on the arguments presented. I don't believe that public safety trumps the 2A, but it is plainly evident that it is the criteria that the courts have used to uphold laws with respect to the 2A. It may look like the 2A always loses, but that is because the only argument presented is an individual one. There is no discussion about the public benefits of individuals being armed and protecting themselves. There is no discussion about the role the government plays in public safety (its only a general interest that does not apply to individuals). If you are not going to dispute the government's argument, your going to lose.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    While the costs may be excessive due to bureaucracy, the plaintiffs in the case did not dispute the cost information. They gave up the right to make that point because they did not challenge it.

    What's to challenge? If the government sets up an exorbitantly expensive bureaucracy for the hidden purpose of chilling exercise of the right, there will be nothing to indicate that such is indeed its purpose save for the expense of the bureaucracy itself, and that is something the courts will never entertain as any sort of evidence of malice towards the right. That only leaves the question of whether the bureaucracy costs as much as it does, and that is something that is not reasonable to challenge in the absence of strong contraindicating evidence.

    Put another way, you miss the point here. The point isn't whether the bureaucracy costs as much as it does, it's whether the bureaucracy itself is excessive to the point that it chills the right. That is something the courts will most certainly be unwilling to address, because it's not their place to decide how the government should do things.

    And that means that there is no avenue to challenge exorbitant fees. If the firearm registration fee were ten thousand dollars (which I use here only because it's a nice, round, and highly excessive number. The actual number a malevolent government would use would be whatever the minimum amount needs to be to make exercise of the right impossible for most people) because that's how much the underlying bureaucracy actually costs to maintain, upon what basis do you suggest prospective plaintiffs challenge that?


    This lead into the second point. Court cases are decided on the arguments presented. I don't believe that public safety trumps the 2A,

    My apologies. I went too far in that characterization -- it's not your claim that public safety trumps the 2nd Amendment. Most certainly, however, the courts clearly believe that, and you do seem to recognize that such is the position of the courts.


    but it is plainly evident that it is the criteria that the courts have used to uphold laws with respect to the 2A. It may look like the 2A always loses, but that is because the only argument presented is an individual one. There is no discussion about the public benefits of individuals being armed and protecting themselves. There is no discussion about the role the government plays in public safety (its only a general interest that does not apply to individuals). If you are not going to dispute the government's argument, your going to lose.

    Correct. But if you dispute the government's argument, then that inexorably leads you into a statistical argument about whether the public safety benefits of an armed citizenry outweigh the public safety benefits of a disarmed citizenry. And that is an argument which you yourself have said we cannot win.

    So we cannot win if we don't dispute the government's argument, and we cannot win if we do dispute the government's argument. That means we cannot win, period.

    What, then, do you suggest?


    And I note in the above that you do not dispute my claim that the courts have decided that "public safety" always trumps the right. That means you do not dispute my conclusion that the right isn't really a right at all, since the basis of all laws imposing upon it is "public safety".
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    In his CIVIL suit, he did the correct thing by attempting to get the license.

    Kwong was a civil suit.


    The damage was then complete when that was denied to him, as there was now no way for Dick Heller to exercise his right to self-defense in his home with a handgun or any readily accessible firearm. Dick was ok with the license requirement so that had no bearing on his case as far as fee's are concerned. If the license fee's/tax are the bitch, one needs to NOT pay them and exercise the right over which the fee's/tax are being charged for. This of course means you won't get the license because it's a license tax/direct tax that's not been paid...In other words, the license attaches to the tax, it's a tax first and foremost and why the court ruled in Murdock v Penn 319 U.S. 105 (1943) the way they did.

    Yeah, that's basically why I think plaintiffs's counsel might have erred in Kwong by not including a plaintiff who was unable to afford the fee.


    In any case, what you were originally talking about was licensing itself, not whether or not acquisition of licenses was beyond the financial reach of someone. You're claiming that the proper approach here is to get arrested and charged for carrying without a license, and to challenge the licensing law on the basis that said licensing is Unconstitutional.

    Well, guess what, we've already had that case: Williams v Maryland. And SCOTUS denied cert to it, even though the Maryland court smacked SCOTUS in the face with their comment that " If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    What's to challenge? If the government sets up an exorbitantly expensive bureaucracy for the hidden purpose of chilling exercise of the right, there will be nothing to indicate that such is indeed its purpose save for the expense of the bureaucracy itself, and that is something the courts will never entertain as any sort of evidence of malice towards the right. That only leaves the question of whether the bureaucracy costs as much as it does, and that is something that is not reasonable to challenge in the absence of strong contraindicating evidence.

    Put another way, you miss the point here. The point isn't whether the bureaucracy costs as much as it does, it's whether the bureaucracy itself is excessive to the point that it chills the right. That is something the courts will most certainly be unwilling to address, because it's not their place to decide how the government should do things.

    And that means that there is no avenue to challenge exorbitant fees. If the firearm registration fee were ten thousand dollars (which I use here only because it's a nice, round, and highly excessive number. The actual number a malevolent government would use would be whatever the minimum amount needs to be to make exercise of the right impossible for most people) because that's how much the underlying bureaucracy actually costs to maintain, upon what basis do you suggest prospective plaintiffs challenge that?




    My apologies. I went too far in that characterization -- it's not your claim that public safety trumps the 2nd Amendment. Most certainly, however, the courts clearly believe that, and you do seem to recognize that such is the position of the courts.




    Correct. But if you dispute the government's argument, then that inexorably leads you into a statistical argument about whether the public safety benefits of an armed citizenry outweigh the public safety benefits of a disarmed citizenry. And that is an argument which you yourself have said we cannot win.

    So we cannot win if we don't dispute the government's argument, and we cannot win if we do dispute the government's argument. That means we cannot win, period.

    What, then, do you suggest?


    And I note in the above that you do not dispute my claim that the courts have decided that "public safety" always trumps the right. That means you do not dispute my conclusion that the right isn't really a right at all, since the basis of all laws imposing upon it is "public safety".

    I think your missing the point. If there is an excessive amount of bureaucracy then the plaintiff needs to demonstrate that. They would need to demonstrate why certain costs were unreasonable. They did not dispute it however. The only issue that was really in dispute was whether the fees that they charged exceeded their cost. If they did exceed their costs, then the court would have required them to be lowered.

    It should also be noted that they did not challenge the requirement for a license, the need to perform a background check prior to getting a license, or the charging of a fee to get the license.

    I don't believe you need to use statistics to make the case for individuals providing public safety, it is a matter of historical and legal precedent. I believe we have discussed this at length and go round and round on this issue.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I think your missing the point. If there is an excessive amount of bureaucracy then the plaintiff needs to demonstrate that. They would need to demonstrate why certain costs were unreasonable. They did not dispute it however.

    They did, but did so by comparing the costs against the costs in other jurisdictions.

    But even if the plaintiffs were to attempt that, on what basis would the court side with the plaintiffs? The courts are not in the business of deciding how the government should do things.


    The only issue that was really in dispute was whether the fees that they charged exceeded their cost. If they did exceed their costs, then the court would have required them to be lowered.

    Yes, but again, that runs squarely into the issue I previously mentioned.


    It should also be noted that they did not challenge the requirement for a license, the need to perform a background check prior to getting a license, or the charging of a fee to get the license.

    No, they did not, but you know that such a challenge would have fallen flat on its face because those requirements are justified by the government on the basis of "public safety".


    I don't believe you need to use statistics to make the case for individuals providing public safety, it is a matter of historical and legal precedent. I believe we have discussed this at length and go round and round on this issue.

    Yes, we go round and round on that because you refuse to address the problems with your approach that I've pointed out, namely that even if you show the historical precedent, that does not provide the court with a justification for siding against, and thus overriding, the government's public safety argument.

    You can't dispute the government's argument without actually disputing it. To dispute it is to claim that the government's argument is wrong. But upon what basis would you make such a claim, when the government's argument (that the law overrides the right because the law improves public safety) is a statistical one, and the courts explicitly claim that their role is not to disagree with the legislature's "findings"?
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    Kwong was a civil suit.


    Yeah, that's basically why I think plaintiffs's counsel might have erred in Kwong by not including a plaintiff who was unable to afford the fee.


    In any case, what you were originally talking about was licensing itself, not whether or not acquisition of licenses was beyond the financial reach of someone. You're claiming that the proper approach here is to get arrested and charged for carrying without a license, and to challenge the licensing law on the basis that said licensing is Unconstitutional.

    Well, guess what, we've already had that case: Williams v Maryland. And SCOTUS denied cert to it, even though the Maryland court smacked SCOTUS in the face with their comment that " If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

    I didn't see the original complaint...How was Williams carrying the firearm as there is no mention of that? With that said, the statute prohibits both concealed and open carry.
    §4–203.

    (a) (1) Except as provided in subsection (b) of this section, a person may not:

    (i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;

    Guess what, there was no distinction mentioned on how he was carrying the firearm in their petition for certiorari. Big mistake, as carrying a concealed firearm is not protected under the 2nd Amendment. If Williams intentionally had an attorney set this case for him, his attorney blew it...Good denial of certiorari.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I didn't see the original complaint...How was Williams carrying the firearm as there is no mention of that? With that said, the statute prohibits both concealed and open carry.

    Which is precisely why the denial of cert was improper.


    Guess what, there was no distinction mentioned on how he was carrying the firearm in their petition for certiorari. Big mistake, as carrying a concealed firearm is not protected under the 2nd Amendment. If Williams intentionally had an attorney set this case for him, his attorney blew it...Good denial of certiorari.

    The circumstances of the arrest seem to moot the question. Read: https://scholar.google.com/scholar_case?case=3765981511731510248&hl=en&as_sdt=2006

    Okay, so your claim now amounts to one that someone will have to challenge a licensing requirement specifically on open carry, and do so by getting arrested for carrying openly without a license.

    If the law in question says, as the Maryland statute did, "open or concealed", do you believe that fact alone will "taint" the case so as to cause the Supreme Court to deny cert? My question is: how "pure" does the case actually have to be before the Supreme Court will deign from on high to grant cert to it?

    Where's the Supreme Court's demand for such purity as regards any other Constitutional right?
     
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    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    The costs are arbitrarily large. Government can build bureaucracies as large as they wish, thus yielding "costs" that result in fees that are impossibly high.

    It may have been an error on the part of the plaintiffs' counsel to fail to acquire plaintiffs who were economically unable to pay the fee.

    In any case, 777GSOTB seems to be claiming that a license cannot be required as a condition upon all exercise of the right (here, the right to bear). The courts clearly have decided otherwise. I agree with him that all license imposition upon a right has some chilling effect upon the right and, thus, that it should be impermissible upon that basis. But the courts aren't in the business of actually protecting enumerated Constitutional rights, so they have decided otherwise.




    Right.

    My point regarding the 2nd Amendment is that it provides no protection against very nearly any law you care to name, because all laws which impose upon the right to keep and bear arms were passed under the "public safety" rubric.

    In essence, you (and the courts) have claimed that "public safety" always trumps the right. And the courts have further claimed that they are not in the business of second-guessing the legislature. But if that combination is so, then every law passed under the rubric of "public safety" automatically bootstraps into Constitutionality, and the end result of that is a "right" which is so tiny as to be practically nonexistent.

    When essentially any and every infringement upon a right can be "justified" on the basis of "public safety", the "right" in question ceases to be a right.

    Great post. As usual, you're one of the only ones who gets it.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    What's to challenge? If the government sets up an exorbitantly expensive bureaucracy for the hidden purpose of chilling exercise of the right, there will be nothing to indicate that such is indeed its purpose save for the expense of the bureaucracy itself, and that is something the courts will never entertain as any sort of evidence of malice towards the right. That only leaves the question of whether the bureaucracy costs as much as it does, and that is something that is not reasonable to challenge in the absence of strong contraindicating evidence.

    Put another way, you miss the point here. The point isn't whether the bureaucracy costs as much as it does, it's whether the bureaucracy itself is excessive to the point that it chills the right. That is something the courts will most certainly be unwilling to address, because it's not their place to decide how the government should do things.

    And that means that there is no avenue to challenge exorbitant fees. If the firearm registration fee were ten thousand dollars (which I use here only because it's a nice, round, and highly excessive number. The actual number a malevolent government would use would be whatever the minimum amount needs to be to make exercise of the right impossible for most people) because that's how much the underlying bureaucracy actually costs to maintain, upon what basis do you suggest prospective plaintiffs challenge that?




    My apologies. I went too far in that characterization -- it's not your claim that public safety trumps the 2nd Amendment. Most certainly, however, the courts clearly believe that, and you do seem to recognize that such is the position of the courts.




    Correct. But if you dispute the government's argument, then that inexorably leads you into a statistical argument about whether the public safety benefits of an armed citizenry outweigh the public safety benefits of a disarmed citizenry. And that is an argument which you yourself have said we cannot win.

    So we cannot win if we don't dispute the government's argument, and we cannot win if we do dispute the government's argument. That means we cannot win, period.

    What, then, do you suggest?


    And I note in the above that you do not dispute my claim that the courts have decided that "public safety" always trumps the right. That means you do not dispute my conclusion that the right isn't really a right at all, since the basis of all laws imposing upon it is "public safety".

    Exactly. Here's an analogy. Suppose the government requires you to get a permit and pay for police protection when holding a march. Now say you need 1 cop for every 100 people. That probably won't yield a cost that is all that high (although I still don't think such a charge will be permissible, but that's irrelevant for the purposes of this analogy). Now say that the government decides you need 500 cops for each protester. At that point, no one would be able to afford this permit, and the "right" to assemble is gone.

    If the courts allow the government to pass the full freight of whatever they determine it "costs" to do whatever gun background check they decide is necessary on to the person requesting the permit, they can simply do more and more in depth searches (knowing full well that they've reached the point of diminishing returns) SOLELY to drive up the cost and eviscerate the right.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    They did, but did so by comparing the costs against the costs in other jurisdictions.

    But even if the plaintiffs were to attempt that, on what basis would the court side with the plaintiffs? The courts are not in the business of deciding how the government should do things.

    Yes, but again, that runs squarely into the issue I previously mentioned.

    No, they did not, but you know that such a challenge would have fallen flat on its face because those requirements are justified by the government on the basis of "public safety".

    Yes, we go round and round on that because you refuse to address the problems with your approach that I've pointed out, namely that even if you show the historical precedent, that does not provide the court with a justification for siding against, and thus overriding, the government's public safety argument.

    You can't dispute the government's argument without actually disputing it. To dispute it is to claim that the government's argument is wrong. But upon what basis would you make such a claim, when the government's argument (that the law overrides the right because the law improves public safety) is a statistical one, and the courts explicitly claim that their role is not to disagree with the legislature's "findings"?

    They did not compare costs, they only compared fees. "Although plaintiffs are quick to argue that New York City's residential handgun licensing fee is significantly higher than the fee charged in other jurisdictions, this is simply not the test for assessing the validity of a licensing fee. Even assuming that an otherwise proper fee might be impermissible if it were so high as to be exclusionary or prohibitive, plaintiffs provide nothing beyond unsubstantiated assertions to suggest that the $340 fee for a three-year license reaches this level. "

    We go round and round because you don't want to accept what I am saying. I address you issues and you bring them up again later. This is what the MSP website says about history:

    Under English common law, every person had an active responsibility for keeping the peace. This was a vital principle in colonial Maryland, a fledgling society with no police or peace officers. The responsibility included crime prevention through vigilance and the apprehension of suspected lawbreakers by groups of persons raising the "hue and cry" or the more official "posse comitatus." Persons whose previous behavior indicated that they were at risk of breaking the peace could be taken before a local court or magistrate and bound over to keep the peace, thereby, in theory, preventing crime. Adapted from the British legal system were the positions of sheriff and constable, officers of the county court who also enforced the law. Sheriffs and constables had no jurisdiction outside their own county. As population increased, county and municipal police departments were created to meet local needs.

    It appears to me that even the government does not dispute the historical precedent.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    They did not compare costs, they only compared fees. "Although plaintiffs are quick to argue that New York City's residential handgun licensing fee is significantly higher than the fee charged in other jurisdictions, this is simply not the test for assessing the validity of a licensing fee. Even assuming that an otherwise proper fee might be impermissible if it were so high as to be exclusionary or prohibitive, plaintiffs provide nothing beyond unsubstantiated assertions to suggest that the $340 fee for a three-year license reaches this level. "

    We go round and round because you don't want to accept what I am saying. I address you issues and you bring them up again later. This is what the MSP website says about history:

    Under English common law, every person had an active responsibility for keeping the peace. This was a vital principle in colonial Maryland, a fledgling society with no police or peace officers. The responsibility included crime prevention through vigilance and the apprehension of suspected lawbreakers by groups of persons raising the "hue and cry" or the more official "posse comitatus." Persons whose previous behavior indicated that they were at risk of breaking the peace could be taken before a local court or magistrate and bound over to keep the peace, thereby, in theory, preventing crime. Adapted from the British legal system were the positions of sheriff and constable, officers of the county court who also enforced the law. Sheriffs and constables had no jurisdiction outside their own county. As population increased, county and municipal police departments were created to meet local needs.

    It appears to me that even the government does not dispute the historical precedent.

    Do you think the courts would require such evidence of exclusion or cost prohibition if the $340 fee was required to vote or to get a gay "marriage?"
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    They did not compare costs, they only compared fees.

    If the government's undisputed claim is correct, that the fees do not exceed the costs, then comparing the fees is comparing the costs.

    (Actually, that's not quite correct, since it's possible that the governments in the other jurisdictions are eating some of the costs and thus artificially lowering the fees. But the government did not, that I'm aware of, make any sort of claim that the other governments were doing that)


    We go round and round because you don't want to accept what I am saying. I address you issues and you bring them up again later. This is what the MSP website says about history:

    Oh, I accept what you're saying just fine. I don't dispute that the history is what it is, or that the historical approach to "public safety" is what you describe. But what you refuse to address is that the history is irrelevant in terms of addressing the government's argument.

    In essence, what you're doing is offering an alternative. But upon what basis should the court entertain throwing out the current "public safety" approach in favor of the historical one? That is precisely what you're insisting the court should do, but the only way to justify that is by way of a statistical argument, which is the very argument you say we cannot win.

    Merely bringing up the history and showing what it was is not a basis for imposing a change on the current structure. It raises an alternative. It does nothing to say why the current approach must be scrapped in favor of the historical one.


    It appears to me that even the government does not dispute the historical precedent.

    That's correct. But it doesn't have to. That's because the historical precedent does not automatically override the current approach.

    Your proposed argumentative approach amounts to one that says "but we used to do it this way". When has that ever been sufficient to justify overturning a "public safety" law?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    Do you think the courts would require such evidence of exclusion or cost prohibition if the $340 fee was required to vote or to get a gay "marriage?"

    Yes I believe the courts would require the evidence in any situation.

    I agree that the $340/3 years seems excessively high, but I don't think the court should base its opinion on my opinion (or anyone else's opinion). I think the court should base its opinion on facts. The plaintiffs did not present facts so the court did not rule in favor of the plaintiffs. The problem is not the court. It is with the plaintiff poorly arguing a case they probably should have won.

    I think a lot of 2A cases are poorly argued. Norman and Kwong are two examples of a large number that have failed because the government argued public safety is involved. The plaintiffs have tried to rely on a more absolute version of the right and failed to define who really provides public safety. Based on the arguments presented, it would seem to me to be a problem with the arguments rather than the courts.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    If the government's undisputed claim is correct, that the fees do not exceed the costs, then comparing the fees is comparing the costs.

    Oh, I accept what you're saying just fine. I don't dispute that the history is what it is, or that the historical approach to "public safety" is what you describe. But what you refuse to address is that the history is irrelevant in terms of addressing the government's argument.

    In essence, what you're doing is offering an alternative. But upon what basis should the court entertain throwing out the current "public safety" approach in favor of the historical one? That is precisely what you're insisting the court should do, but the only way to justify that is by way of a statistical argument, which is the very argument you say we cannot win.

    Merely bringing up the history and showing what it was is not a basis for imposing a change on the current structure. It raises an alternative. It does nothing to say why the current approach must be scrapped in favor of the historical one.

    That's correct. But it doesn't have to. That's because the historical precedent does not automatically override the current approach.

    Your proposed argumentative approach amounts to one that says "but we used to do it this way". When has that ever been sufficient to justify overturning a "public safety" law?

    Have you every heard of Heller v DC. The opinion cited extensively from historical precedent.

    I don't just say "but we used to do it this way" because I bring up recent cases that indicate that the government does not really protect any individual, which means the main component of public safety is really about the individual.

    I also say that the police are part of the problem and believe that things like the BPD consent decree demonstrate modern day examples. This is why the amendment was codified in the first place.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    Have you every heard of Heller v DC. The opinion cited extensively from historical precedent.

    That's true, but it did so because it was determining whether or not the right was an individual one, was attempting to determine the meaning of the 2nd Amendment, etc.

    Nowhere in Heller v DC did the Court say anything about replacing the current public safety scheme with the historical one. Indeed, that case overturned the law because it conflicted with the right, not because the law conflicted with the historical approach to public safety.

    Indeed, Heller was won on the basis of arguments which you are saying we should now abandon.


    Heller stands for the opposite of what you say here. The Court didn't address public safety at all in that case.


    I don't just say "but we used to do it this way" because I bring up recent cases that indicate that the government does not really protect any individual, which means the main component of public safety is really about the individual.

    No. That the government doesn't protect any individual doesn't mean that the main component of public safety is about the individual. Indeed, the courts have explicitly stated that the government's duty to public safety explicitly excludes a duty to the individual, while they also uphold "public safety" laws despite the danger they impose upon individuals, which clearly must mean that the courts view the main component of public safety as excluding the individual. Were that not the case, "public safety" laws would be unable to stand in the face of danger they impose upon the individual.

    Put another way, it is a flat-out contradiction to claim that the government has a "compelling interest" in public safety while it simultaneously has a "compelling interest" in supporting "public safety" laws which endanger individuals, unless "public safety" either excludes individual safety or has something other than individual safety as its primary component.


    The government is the means by which the law is executed. If the government has no duty to the safety of the individual, then the law cannot either, since it would otherwise mean that the law would codify something the government has no duty to implement. But if the law doesn't have any duty to the safety of the individual, then "public safety" cannot possibly have the individual as its primary component, since "public safety" is something the government, and thus the law, has a "compelling interest" in. One cannot have a "compelling interest" in something while simultaneously having no duty towards its primary component, and one certainly cannot have a "compelling interest" in something which acts against the primary component of the basis of that something.


    I also say that the police are part of the problem and believe that things like the BPD consent decree demonstrate modern day examples. This is why the amendment was codified in the first place.

    Oh, I agree with you on that, but I don't see why a court would agree with you on that. The court would demand evidence in support of your position that an armed citizenry can better provide for public safety than can the police alone. But that is precisely the statistical argument that you say we cannot win.

    So again, upon what basis would you counter the government's argument that their laws must stand because they exist for public safety reasons, and the government has a "compelling interest" in public safety?
     
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